Wednesday, November 18, 2009

Wedding Photography Contracts - A Cautionary Tale

As PDNPulse recapped here a New York Post article here, a bride has filed a lawsuit in the Manhattan Supreme Court alleging she instructed her photographer, of the highly regarded wedding photography studio Christian Oth Photography, to refrain from taking photographs of her while getting ready, and in some degree of undress.

The suit also alledges that Oth posted the photographs, according to PDN for "all to see." So the question is - what are the photographers rights and obligations? Let's take a multi-facted look at the circumstances surrounding this issue.

(Continued after the Jump)

First - let's assume, just for the moment, that the allegation of the bride is true, in that photographs of the bride in some state of undress/preparation, are online and viewable to the public. Since Oth no doubt had the bride and groom sign a contract, the contract most likely includes the right granted to the studio for them to be able to use images from the wedding for promotional purposes. The sample contract made available by the Professional Photographers of America (here - membership required) to its' members, includes the clause:
"The Studio/Photographer reserves the right to use negatives and/or reproductions for advertising, display, publication or other purposes. Negatives and previews remain the exclusive property of this Studio/Photographer."
Thus, if the images appeared on Oth's website, and Oth used recommended contract language, they would be legally covered.

The second statement that the bride alledges, is that (according to PDN) the photographer was ordered " refrain from taking photos of her in a state of undress but that the photographer kept snapping away anyway." However, there are no stipulations in the contract for this to take place, if Oth used the standard PPA contract. Two terms would cover this:
"It is understood this Studio/Photographer is the exclusive official photographer retained to perform the photographic and/or video services requested on this Contract."
and this term:
This Contract incorporates the entire understanding of the parties. Any modifications of this Contract must be in writing and signed by both parties.
Thus, the bride could not modify the contract verbally with an "order", and this is again, assuming some variation of the PPA recommended contract was used.

Oth has responded to the PDNPulse article, with a statement (in PDF form) here, and makes the point that "We have never posted any images of Mrs. Bostwick on our public website or any other public venue. Client images, such as Mrs. Bostwick's, are posted on our proofing website and are always password protected." Some research shows that Oth uses Pictage, long considered a leader in providing online galleries and proofing/print ordering for wedding couples. Oth's studio page on Pictage is shown here. As someone who has in the past used Pictage for all manner of client deliverables (including weddings), I can say that the back-end ability to limit public viewing is very powerful.

Pictage recommends that the bride and groom be given "owner" status of their galleries. As such, the gallery would be transferred to the owner, and the owner in turn has the right to "make private" images they don't want their guests to see (yet they can still see.) As such, before the owner releases the images to friends and family to browse, they have had the ability to edit their gallery of images. At all times, owners, friends and family either have to log-in, or have a password to establish an account specific to that gallery and then log-in, before being able to see images. In the end, Pictage has the ability to protect client and end-client images very well. While it is possible for a Pictage user like Oth to have granted "public" access to a wedding, it is made very clear that you are choosing this option when you are setting up an account, so I would doubt that this was the case.

As someone who has photographed weddings, (and as a male), my discussions center around "the bride putting the final touches on her gown", which usually refers to primping and the affixing of the veil/train, just before dad comes in to see his daughter. This time is usually where a few candids of the bride with bridesmaids, and so on can be made, and those images are nice for the beginning of the album. For a female photographer (and I am guessing here), it might be normal/more comfortable for her to be in a bit earlier when there might be a bit more being revealed, as could have been the case given that the Oth photographer is Carolyn Monastra, almost certainly a woman.

So, with the assumptions regarding legalities and likelihoods out of the way, what remains? Reputation. The Knot has a forum post here with praise for Oth, but as this lawsuit makes the rounds, it could show up on the boards. With the article on the New York Post, it wouldn't surprise me if more than one bride/groom who was considering Oth has opted for another photographer. For those who have already signed a contract, they could well be contacting Oth for assurances, or making attempts to get out of their contracts. With Pictage listing Oth weddings in the $3,001-$5,000 range, this will likely have an economic impact on them even if the suit is dismissed in short order.

Could it be that the bride was unhappy with the results, or wants more for free? Of course - both of those things happen frequently. Thus, this could just be a way for an unhappy bride to get back at the photographer. We won't know, of course, until this is settled, one way or another.

In the end, it is imperative in this world where clients are expecting white-glove treatment at every turn, and reputations are on the line, that contracts clearly spell out what's allowed and what's expected. Further, with Oth, who was likely sub-contracting photographer Carolyn Monastra making sure that vendors are customer-service focused is key. It may be that Monastra and the bride were just being light-hearted about it, or perhaps all was well in the beginning and Monastra did not get direction as the bride suggested, but later the bride decided to revise history. Either way, it is imperative to listen to what the bride is - and is not - telling you. I submit that scantily-clad images of a bride are likely of little use for a wedding album that you'll be showing the parents/in-laws, and eventually your children, so don't bother shooting them until it's all about the "final touches" and the makeup check in the mirror.

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Anonymous said...

That's a good analysis of the contract, but it rather surprises me that a contract would not provide for a simple "please stop taking photographs for the moment"-type of interaction. In Dutch law at least, this is an acceptable matter of on-the-spot contract interpretation. You can also ask the photographer to move over - even for a posed shot! - to accomodate for someone in a wheelchair, and it is unthinkable that the photographer would not budge because he is not contractually bound to follow requests of the kind.

Failing to interact in good faith in these two examples could still be considered breach of contract - at least according to Dutch law. And as I can hardly believe the notion that the second example would really result in the photographer refusing to budge, I can not really believe that this contract term you cite is enough to justify uncivil behaviour.

The contract does not entail that the contracting party who agrees to be photographed, waives the right to set personal boundaries.

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